U.S. v. Luisi

• Decision Date: 10 April 2007
• Docket Number: No. 03-1470.,03-1470.
• Citation: 482 F.3d 43
• Parties: UNITED STATES of America, Appellee, v. Robert C. LUISI, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

482 F.3d 43

UNITED STATES of America, Appellee, v. Robert C. LUISI, Jr., Defendant, Appellant.

No. 03-1470.

United States Court of Appeals, First Circuit.

Heard January 10, 2007.

Decided April 10, 2007.

John H. LaChance, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Circuit Judge, SELYA, Senior Circuit Judge, and Howard, Circuit Judge.

LYNCH, Circuit Judge.

Defendant Robert C. Luisi, Jr., an admitted member of the "La Cosa Nostra" (LCN) crime family, appeals his convictions on three cocaine-related charges. These convictions stemmed from an FBI investigation that employed a paid cooperating witness and LCN member, Ronald Previte.

At trial, Luisi testified and admitted his involvement in the cocaine transactions. His defense was entrapment, on intertwined theories. He claimed that Previte, acting for the government along with undercover FBI agent Michael McGowan, had improperly tried to induce him to commit drug crimes. He further claimed that when he resisted, Previte persuaded Philadelphia LCN boss Joseph Merlino to order Luisi to engage in the charged drug transactions. Merlino was Luisi's superior in the LCN, and the government was aware of the serious consequences Luisi would face if he refused to follow Merlino's order.

The district court instructed the jury on the entrapment defense. However, the court's supplemental instructions — given in response to a jury question — foreclosed the jury from considering Merlino's role in the asserted government entrapment of Luisi. We conclude that those instructions were erroneous, and we vacate the convictions and remand the case.

I.

In July 1999, a grand jury in the District of Massachusetts indicted Luisi and three co-defendants on three charges: one count of conspiracy to possess cocaine with intent to distribute, see 21 U.S.C. §§ 841(a)(1), 846, and two counts of possession of cocaine with intent to distribute, see id. § 841(a). The conspiracy was alleged to have run from February 1999 through June 28, 1999. The two possession counts stemmed from transactions on April 30, 1999, and June 3, 1999.

Pursuant to plea agreements with the government, two of Luisi's co-defendants pled guilty to the possession counts. The indictment against the third was dismissed following that defendant's death, leaving Luisi as the sole defendant at a trial that commenced on September 9, 2002. We recount the key testimony.

In the late 1990s, the FBI conducted a major investigation into the operations of the Philadelphia LCN. Previte, a captain or "capo regime" in the LCN, assisted the FBI investigation by working as a cooperating witness under a personal services contract with the FBI. He was paid a substantial sum of money in return.

The FBI came to learn that Luisi was working for the Philadelphia LCN as a captain, and that he was supervising the criminal activity that the organization undertook in Boston. Eager to get evidence against Luisi, the FBI had Previte introduce Luisi to McGowan, who posed as a source of illegal money-making opportunities.

The introduction took place over January 11th and 12th, 1999. McGowan operated under the pseudonym "Michael O'Sullivan" and purported to be in the import/export business. He told Luisi he had previously worked with Capo Previte in Philadelphia, and said he had now relocated to Boston. McGowan explained to Luisi that as part of his business he was sometimes presented with "opportunities" and that sometimes he needed help taking advantage of these "deals." Luisi agreed that he would look at future deals with McGowan. Unbeknownst to Luisi, this conversation was being recorded by the FBI — as were the vast majority of the future conversations Luisi would have with McGowan.

The first "opportunity" occurred on February 10, 1999, when McGowan presented Luisi with several "stolen" furs. Luisi was not sure if he would be able to sell them, but he stated he would look into it. He also inquired whether McGowan had other items; when McGowan mentioned the possibility of obtaining jewelry, Luisi expressed more interest in that, and particularly in diamonds. There was no mention of any drugs at this point.

Several days later, Luisi and Previte spoke to each other at a party in Philadelphia. Merlino was also present at the party. Luisi testified that Previte proposed a "swap" of cocaine for diamonds, and that Luisi's response was that he would "try" to get the deal done. He testified that he gave this response because "at the party [Merlino] . . . made it very clear to me that he wanted these drugs," although Luisi later clarified that he did not at that time understand Merlino to be giving an "order" to do the deal, but merely "permission." That would change. In any event, Luisi testified that at or shortly after the party he chose not to do the deal.

On March 8, 1999, McGowan again met with Luisi, along with two of Luisi's associates.¹ McGowan referred to Previte's proposed swap and stated that he (McGowan) knew a guy with diamonds, and that the guy was looking to exchange them for "three bricks."² Luisi's immediate response was: "I want to get them, I want to bring them to [a jeweler friend of mine], if he likes it, boom. We'll do the deal and I'll do it that way, whatever [Previte] wants." McGowan interpreted this to mean that Luisi wanted to see the diamonds, and that he would be willing to exchange cocaine for them.

Several minutes later, however, Luisi took McGowan aside privately. This part of the conversation was not recorded. According to McGowan, Luisi told him that because Previte had referred McGowan to him, Luisi would make "every effort" to get the cocaine, but it would be difficult and it would take time. Luisi testified that he did not actually agree to do a drugs-for-diamonds swap.

Also during the March 8th conversation, McGowan asked Luisi what items, other than the diamonds, he would be interested in. Luisi responded that he would be interested in jewelry, watches, and cigarettes, and some of his associates mentioned film and razor blades.

McGowan's next meeting with Luisi and his associates came on March 11, 1999. McGowan had some "stolen" Polaroid film, and the participants discussed how it was to be sold. Luisi reported on his only partially successful attempts to sell fur coats, and the participants also discussed diamonds and jewelry. Later during the meeting, McGowan mentioned that Previte was coming up to Boston in a few days, and Luisi agreed to meet with both Previte and McGowan then. Luisi and his associates left with the film.

Previte came to Boston, and on March 16, 1999, he met with McGowan, Luisi, and some of Luisi's associates. The participants had a cryptic conversation during which, according to McGowan, Luisi confirmed that he would get the cocaine-for-diamonds deal done. The following day, McGowan talked to Luisi over the phone, and again inquired into the status of the cocaine deal with Previte. Luisi replied that he would work on it, but indicated that the deal would not happen immediately.

During this time, Luisi had also been trying to sell the film that McGowan had given him on March 11th. He was unable to do so at a price that McGowan was willing to accept, and so on March 19th Luisi returned the film. After Luisi again expressed his preference for jewelry, and after McGowan again reaffirmed his ability to get jewelry, the conversation turned back to the proposed diamonds-for-cocaine deal. Luisi made comments that, if taken at face value, expressed a reluctance to go ahead with the deal and indicated that Luisi had "nothing to do with" the cocaine business. Luisi also explained to McGowan that "in the last . . . three years I lost over a dozen and a half guys to that. . . . And I have to make a stern, a firm stand here. . . . I don't wanna have nothing to do with it."

Luisi then said that he would send a guy named Danny White, not affiliated with Luisi, to do the deal. Luisi told McGowan that once White made contact with McGowan, McGowan would have exactly seven days to complete the transaction. Luisi and McGowan also discussed cash terms for the deal (even though the deal had originally been conceived of as a barter for diamonds).

Luisi testified that Danny White actually is a fictitious person whom Luisi made up in order to pretend that he was cooperating with McGowan.³ McGowan testified that he never met White at any point, that he never had any conversation with him, and that he did not know whether White was a fictitious person or not.

Luisi and McGowan had no contact with each other for the next three weeks.⁴ On April 19, 1999, McGowan initiated a phone conversation with Luisi. McGowan turned the discussion to dealings with Previte, and Luisi responded that "[e]verything's gonna be okay soon." McGowan understood this to be a reference to the cocaine transaction.

McGowan initiated another phone conversation with Luisi on April 23, 1999. McGowan told him that Previte would be coming to Boston on April 28th, and he asked Luisi to be available then. Luisi said he would probably be available, and he also said "I'm ah gonna be calling you ah with my other friend any day." McGowan interpreted the "other friend" to be a reference to Danny White. In the same phone conversation, McGowan mentioned that he might soon have more stolen property coming in.

On April 27, 1999, one day before Previte's planned trip to Boston, Previte had a conversation with Merlino, his superior in the LCN. Previte was wearing a wire, and the conversation was recorded. As revealed by the tape, Previte complained to Merlino that Luisi had not yet done the cocaine transaction, despite Luisi's representations. Previte explained to Merlino that he had "big money sittin[g] on the line," and that Merlino would also make money from the transaction. He directly asked Merlino if there was "any way...